Court File and Parties
Between:
Her Majesty the Queen
P. Scrutton for the Crown
— And —
Muhammed Danish Munir
A. Vaughan for the defendant
Reasons for Sentence
Justice T. Lipson
The Offence and Agreed Statement of Facts
1The accused, Muhammed Danish Munir, is a criminal lawyer who has pleaded guilty to a charge of fraud under $5000. He admitted to defrauding a client's sister of $1000. The Crown elected to proceed by indictment.
Agreed Statement of Facts
On April 29, 2013, M.R. was arrested and charged with committing two sexual offences against his daughter. Muhammad-Danish Munir represented Mr. M.R. when he was released from custody after a bail hearing on May 6, 2013, and was retained to represent him on the criminal charges. Eventually, a trial date was set for February 20, 2014.
On February 10, 2014, the complainant in the M.R. matter recanted her allegations during an interview with the Crown and the lead investigator. Satisfied with the sincerity of the recantation, a decision was made to terminate the prosecution. The assistant Crown attorney with carriage of the M.R. matter spoke to Mr. Munir on February 12 to communicate the decision not to proceed. She spoke to him about when the matter would be dealt with again around 9:30 am on February 13.
The same day, at 11:30 am, Mr. Munir contacted Mr. M.R.'s sister, E.M., whom he was familiar with from an unrelated immigration matter of Mr. M.R.'s. Mr. Munir told her that he was making an "under the table" deal to have her brother's charges dropped, and that she could not tell anyone about this because it was "top secret" and involved bribery of the police. He asked her to come up with money so he could negotiate. He did not as yet know the amount she would have to pay.
Soon after receiving this call, Ms. E.M. spoke to her sister-in-law, the complainant's mother, who told her that the Crown had already decided not to proceed with the charges. At 2:10 pm that day, Mr. Munir called a second time, and told her that he needed the money by 5:00 pm because the officers he was trying to make the deal with were working nights. Suspicious, Ms. E.M. went to the Toronto Police Service to make a complaint. While speaking with members of 31 Division CIB later that afternoon, Mr. Munir called her cell phone twice, and left one voicemail that said:
"Hi E.M., I don't know where you are and M.R. has not called me. Can you call me back as soon as you hear the message? I know you know it's kind of urgent. Can you call me ASAP, thank you. It's Danish, the lawyer."
On February 14, 2014, the assistant Crown attorney with carriage of the M.R. matter wrote to Mr. Munir to tell him that those charges would be dealt with in court on the February 20th trial date. Between February 14-19, Ms. E.M. met with members of 31 Division CIB a number of times. She agreed to act as an agent in an investigation of Mr. Munir for fraud and false pretences.
On Wednesday, February 19, 2014, Mr. Munir sent Ms. E.M. a number of text messages attempting to coordinate payment. He asked her to meet him at an address on Weston Rd. The following exchange occurred:
Munir: "This is urgent try to understand we need a break not the cops."
E.M.: "I know it's very important, but if we can't make it tonight what will happen to my brother's charges?"
Munir: "Well a trial is in the hands of the judge. He can send a person to jail or acquit. I will strongly suggest we meet tonight. Trial is tomorrow. Call me Asap."
E.M.: "Am driving will call you when stopped."
Munir: "It's your brother's case and I expected that you would be very serious but what I see is little or no worry on your part."
E.M.: "How much do I need to come up with?"
Munir: "Call me."
Ms. E.M. contacted Mr. Munir from 31 Division soon after this exchange. He advised her that she needed to bring him $1000 that day. At the direction of the investigators, she told him that she did not have the money at the moment and asked if she could give it to him that Friday. Munir told her that this was about her brother's life and that if he ended up being charged, he could have to leave Canada. He asked her to either bring him the money or let him collect it from her – he needed the money that night so "good things" could happen. He also said that if for some reason the charges were not dropped, he would return all of the money.
Ms. E.M. called him back one hour later to say that she could not bring him the money that night but had a friend who would help and could get him the money at 10 am. Mr. Munir said that he needed the money by 9 am because court starts at 10 am. He said the money was guaranteed to provide "good results" and asked her to contact her friend to make sure she would be there at 9 am.
The Toronto Police assigned an undercover officer to pose as Ms. E.M.'s friend. After Ms. E.M. executed a one-party consent to intercept her private communications, police applied for and obtained an authorization to intercept communications pursuant to section 184.2 of the Criminal Code.
Mr. Munir called Ms. E.M. back later that evening and they agreed on a $1000 payment to the police.
Ms. E.M. attended court at 2201 Finch Ave. West on the morning of February 20. Mr. Munir asked if she had the stuff and told him she was still waiting for her friend, who was coming. Shortly after, she took a call from the undercover officer and told Munir that her friend would not have the money until tomorrow when she got paid. He said that he needed the money, the deal was done on his end, and she had given him her word. He said that he would have to avoid the police calls for the day and gave him the address of his office so that she could drop the money off. He also said that her brother was looking at at least one year and deportation for these charges, that he was doing a lot for them, and she needed to keep up her side of the bargain.
The Crown stayed M.R.'s charges in court that morning.
Ms. E.M. and the undercover officer (Det. Constable Abbasi) met Mr. Munir at a Tim Horton's by his office around 6:30 pm on February 21. A number of different electronic devices recorded the ensuing conversation. The following is a summary, with verbatim excerpts.
Mr. Munir indicated that all charges were gone, nothing was pending, and explained how they could order a copy of the criminal information. When asked by the officer how he did it, Mr. Munir responded: "Let's just say I'm a magical lawyer" and boasted that "out of the 30,000 criminal lawyers, I am probably one of the top ten." He indicated that he would not explain how he had done this, it was his "trade secret".
When asked whether this was hard to do, Munir said: "It is always very hard…It takes cash." When asked if the money was for him, he said: "it's not for me, I'm just going to make a little bit of money… this guy, from the very outset was an innocent person to me. I believe in that myself."
When asked how long this took to do, Munir answered: "I started to work on it, um, about two months ago… It takes time. You have to find the right person. But, I did it."
Munir told them: "That's it. The game is over. And it's my guarantee: nobody is going to come after you once they get this. That's it."
When asked what happens if they do not pay, he said: "if you don't give me the money then there can be problems. I will be in trouble."
When asked if anything could happen to E.M. or M.R., the following exchange occurred:
MUNIR: "No. Well, uh, he can go after them. Because he---"
ABBASI: "He can go after who?"
MUNIR: "If you don't pay me now, after M.R.."
ABBASI: "After M.R.?"
MUNIR: "Yes."
ABBASI: "He can go after him?"
MUNIR: "Well I can, I'm just going to tell him they didn't pay."
ABBASI: "And then what will happen?"
MUNIR: "Then he can do whatever he wants to. I don't know."
ABBASI: "So who's this money for?"
MUNIR: "For them."
ABBASI: "Well who's 'them'? I'm not, I don't understand, like if I don't pay you---"
MUNIR: "I, I am, I am not supposed to disclose this information."
ABBASI: "But I'm giving you money."
MUNIR: "Regardless, I can't disclose this to you. I have just given her a guarantee, once they get this money it's all over."
ABBASI: "But how can I know that for sure?"
MUNIR: "Well I am guaranteeing that."
ABBASI: "Well how do I know that you're not---"
MUNIR: "Well I am telling you that I'm guaranteeing that, that's it."
When asked again what happen if they do not pay the money, the following exchange occurred:
MUNIR: "Well then I can't guarantee anything after this."
ABBASI: "What, what do you mean when you say 'after'?"
MUNIR: "Well I'm going to be in trouble. I'm going to have to let that guy know---"
ABBASI: "Well why are you going to be in trouble?"
MUNIR: "Because I was a broker."
ABBASI: "You were a what?"
MUNIR: "I was a broker."
ABBASI: "You were a broker?"
MUNIR: "Broker."
ABBASI: "Okay. And then what will happen?"
MUNIR: "Well then I don't know, what they want to do they can do. It's---"
ABBASI: "I don't know what that means though. Explain to me, I don't know what that means."
MUNIR: "Listen ma'am, I don't have to explain these things."
When asked: "what does your guarantee do for me?" Munir replied: "But I am a lawyer."
When asked: "Okay, so if I don't give you this money, he's not going back to jail?"
MUNIR: "He might."
ABBASI: "Why would he go back to jail if he's already out?"
MUNIR: "I don't know why."
ABBASI: "What do you mean you don't know why?"
MUNIR: "I don't know why."
ABBASI: "So why, why would he---"
MUNIR: "Because you know why---"
ABBASI: "---go back to jail if he's already out?"
MUNIR: "Listen to me."
ABBASI: "I don't know how that works."
MUNIR: "Here it's like this. It is like this. You don't mess with a cop."
ABBASI: "I don't mess with a cop?"
MUNIR: "Yeah. Nobody messes with a cop."
ABBASI: "Nobody messes with a cop?"
MUNIR: "Then you know what? Cops are very powerful people."
ABBASI: "I know that."
MUNIR: "They do things on trust."
ABBASI: "Okay."
MUNIR: "They did this on trust."
ABBASI: "So---"
MUNIR: "It was my guarantee that they'll get it. I have been avoiding his calls from yesterday."
ABBASI: "So your client's a police officer?"
MUNIR: "Yeah."
ABBASI: "So what would he do if he didn't get the money?"
MUNIR: "Well if he didn't get the money I don't know what we can do. He's a cop."
ABBASI: "What does that mean?"
MUNIR: "Oh a cop is a very powerful person."
ABBASI: "Yeah but what would he do?"
MUNIR: "Well he can even do something which can get the case re-opened."
ABBASI: "Like how can he do that?"
MUNIR: "He can do that within one year."
ABBASI: "Within one year?"
MUNIR: "Within one year. That's why I'm telling her, 'Keep him away from his daughter and his wife for the next one year.' That's why I told her that. Trial has been a stay, they can re-open it within one year. You can check the Criminal Code on that."
ABBASI: "But how would he re-open it?"
MUNIR: "I don't know."
ABBASI: "Because it makes no sense to me, like---"
MUNIR: "But they can, they can."
ABBASI: "---right, like do you understand that? Like, it makes no sense to me."
MUNIR: "When they stayed the charges they said that there was not enough evidence to proceed against him. But, they can later on get evidence."
ABBASI: "How?"
MUNIR: "I don't know."
ABBASI: "But how?"
MUNIR: "It's up to them. They're the investigators. That's why I've told her."
ABBASI: "But if they don't have enough evidence to go forward, how are they going to get evidence?"
MUNIR: "Listen ma'am, I, like I said, E.M., I don't have to go through this. I don't have to go through this. I got your brother off the hook. That's the best I could do. And I told you it will happen and it did happen…"
At the end of the discussion at the restaurant, the undercover officer paid Mr. Munir $1000. Mr. Munir left and was arrested a short distance away. He was released from the station on a Form 1 undertaking.
2The pre-sentence report author states at page 6: "Although he did not try to justify his actions he explained that the main factor why he committed the offence was to receive monetary compensation for the number of hours he had invested in the case after he found out the charges were stayed."
3Mr. Munir's client was legally aided. A psychiatric assessment prepared by Dr. J. Bobrowski, filed exhibit 2, tab 5 indicates that the accused explained that he invested some 25 hours of preparation time although Legal Aid would only cover 15 of these hours. Munir said that he had decided to not bill legal aid but instead recoup his losses directly from the client. It is impossible to know whether the accused would have followed through on his stated intention not to bill Legal Aid since he was arrested immediately after receiving the requested payment from the complainant.
Victim Impact Evidence
4In his victim impact statement, Mr. M.R. wrote: "When I found out what Mr. Munir did, I was sad, angry and frustrated. Here I was thinking he was an officer of the court, a lawyer, someone who you trust to help you in your time of need. Instead he is here exploiting people of their hard earn (sic) money. Since the crime I fear for my safety and that of my family. I had countless sleepless nights. I couldn't eat, I would be so scared whenever I saw a police car, thinking I would be harm (sic). Since he said that we shouldn't mess with the police, they can do whatever they want I was scared for my life since he knew where I live and that of my family. I would constantly look behind my back…"
5Ms. E.M. indicated in her victim impact statement that two months prior to her brother's arrest she lost her employment and was raising two young children on her own. She felt that she "had been taken advantage of" by the accused and was angry by the accused's abuse of the trust she and her family had placed in him.
Circumstances of the Offender
6Sentencing materials submitted by the defence, exhibit 2, include a psychiatric assessment authored by Dr. J Bobrowski, letters attesting to Mr. Munir's attendance for counselling at treatment at Homewood and the Centre for Addiction and Mental Health (CAMH) for substance abuse and other related issues and letters attesting to charitable donations made by the accused. The court also considered a pre-sentence report that was filed as exhibit 3.
7Mr. Munir is 46 years of age and married with two children ages 19 and 11 respectively. He has been married for 18 years. Mr Munir has been addicted to alcohol since 2003. He also has a history of blackouts and withdrawal seizures. He has attended counselling at CAMH in 2012 and 2014. His driver's licence was suspended due to his alcoholism. He is currently attending Alcoholics Anonymous and has a sponsor. Mr. Munir advised the pre-sentence report writer that alcohol was not a factor in the offence before the court yet he advised Dr. Brobowski that "the criminal charges he has incurred for very minimal financial gain would never have seen the light of day had he been sober".
8Mr. Munir was born in Pakistan and resided in Karachi until 1977 when his family moved to Dubai. He returned to Pakistan to study law. He moved to Toronto in 2000. He obtained a law degree from the University of New Brunswick in 2004 and then moved to Toronto where he articled and was then called to the Bar in 2005. Following his arrest, he self-reported this charge to the Law Society which suspended his licence to practice.
Positions of the Parties
9The Crown seeks a 12 month reformatory sentence. Counsel for Mr. Munir submitted that the appropriate sentence was a 9 month conditional sentence or in the alternative a 90 day intermittent custodial sentence.
What is a Fit Sentence?
10In the sentencing process, the authorities indicate that trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individualized exercise. Judges must tailor the sentence to the gravity of the offence and the circumstances of the specific offender: R. v. Wright, [2006] O.J. No. 4870 at para.16 (Ont. C.A.); R. v. D (D). (2002), 163 C.C.C. (3d) 471 at para.33 (Ont. C.A.); R. v. Rosenfeld 2009 ONCA 307 , [2009] O.J. No. 1478 (Ont. C.A.) at para. 33.
11The fundamental principle of sentencing in this and any case is the proportionality requirement found in s. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
12I must also consider the principle of restraint found in s. 718.2(d) that an offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances.
13Any sentence imposed by a court must promote one or more of the objectives identified in s. 718:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
14There is no dispute that the principal sentencing objectives in this case are societal denunciation as well as general deterrence and specific deterrence. At the same time, the court should also take into consideration both Mr. Munir's rehabilitative prospects and the need for reparation to the community for the harm done.
15In their submissions, counsel correctly identified the aggravating and mitigating factors present in this case.
Aggravating Factors
16In committing this offence, the accused occupied a position of trust. He owed his client a duty to act in his best interests and to do so with integrity and complete honesty. Mr Munir breached these responsibilities for personal financial gain. Regrettably, the deceit he chose employ to commit the fraud was to paint the entire administration of justice as corrupt— police officers could be paid off and justice purchased with a bribe. While his scheme was not particularly well-planned, it was hardly impulsive. Mr. Munir's communications with his client's sister spanned some eight days and involved several conversations. Even after his client's family found out that the charges were to be stayed, Mr. Munir continue to play on their fears by warning them of potential dire immigration consequences for Mr. M.R.. Particularly aggravating was the accused's extortive assertion that the case could be re-opened if the police did not receive a payment. While the amount of money Mr. Munir sought may seem relatively small to some, it was not insignificant to the intended victim. Ms. E.M. was out of work and caring for two children.
Mitigating Factors
17In mitigation, Mr. Munir has entered a very early guilty plea. He self-reported his conduct to the Law Society. He has been cooperative with investigators. I am satisfied that Mr. Munir is truly remorseful. Mr. Munir's licence to practice law is currently under suspension and there is a real likelihood that he will never be permitted to practice again as a result of this criminal conduct. While his alcohol dependency did not play a direct role in the commission of the offence, it is probable that his long-standing addiction has, over time, affected his physical and mental health and, in all likelihood, his better judgment. Mr. Munir has made a concerted effort to address his substance abuse and has meaningfully engaged in rehabilitation. Mr. Munir's case has received significant and unfavourable media coverage as evidenced by three online newspaper articles submitted in the defence materials. Mr. Vaughan submitted that Mr. Munir will forever wear a "digital scarlet letter". There can be no doubt that Mr. Munir has brought upon himself significant public humiliation in the media and within the legal community. It must be difficult for him to bear the disappointment of his family and know that he has failed as role model for his children.
Analysis
18There is obviously a tragic element to this case. Mr. Munir is an intelligent individual who was growing a promising criminal law practice. In the M.R. matter, he worked diligently to achieve a good result for his client. However, out of greed, the accused destroyed both his professional reputation and career by committing this fraud. Instead of immediately notifying Mr. M.R. that his charges were being stayed, the accused saw an opportunity to make some quick money at the expense of his client's family. Mr. Munir told Mr. M.R.'s sister that the police needed to be bribed in order to obtain a favourable result in her brother's case. Even after the family found out that the charges were to be stayed, Mr. Munir persisted in his fraudulent scheme by threatening that Mr. M.R.'s case might be reopened or that deportation was possible if the police were not paid off.
19Rule 2.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada states that "a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity." There is no dispute that the fraud on his client's sister was also a breach of the accused's duty to act in the best interests of his client, Mr. M.R..
20I adopt the following observations made by Doherty J.A. in Rosenfeld at para. 40:
The appellant's status as a lawyer is a significant aggravating factor for two distinct reasons. First, apart from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system: see R. v. Oliver, [1977] 5 W.W.R. 344 (B.C.C.A.).
21The commentary on Rule 2.1-1 points out that "integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession. If a client has any doubt about their lawyer's trustworthiness, the essential element in a true lawyer-client relationship will be missing. If integrity is lacking, the lawyer's usefulness to the client and reputation within the profession will be destroyed, regardless of how competent the lawyer may be. Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer's irresponsible conduct. Accordingly, a lawyer's conduct should reflect favourably on the legal profession, inspire confidence, respect and trust of clients and of the community and even the appearance of impropriety."
22Both Section 718.2(a) and the common law make it an aggravating circumstance that the accused, in committing the offence, abused a position of trust in relation to the victim. Section 380.1 sets out a number of aggravating circumstances which can be present in the commission of fraud-related offences. One such circumstance is that "in committing the offence, the offender took advantage of the high regard in which was the offender was held in the community."
23Counsel for Mr. Munir submits that a conditional sentence is appropriate. It is true that a conditional sentence is potentially available since the statutory prerequisites are satisfied: a sentence in the reformatory range is appropriate and the safety of the community would not be endangered by the imposition of a conditional sentence. The real issue is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. The Supreme Court of Canada has stated that while notions of deterrence and denunciation can be accommodated within the framework of a conditional sentence, there may be circumstances in which the need for deterrence and denunciation is "so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct" or to reflect the deterrence objective: see R. v. Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449 (S.C.C.) at 493-494.
24I have taken into account all of the mitigating factors as well as the significant breach of trust which occurred here, the moral blameworthiness of the accused, and the pressing need for denunciation and general deterrence present in this case. I conclude that a conditional sentence cannot adequately address the principle sentencing objectives. In a case such as this where the offender, a practicing lawyer, has brought not only his profession but also the administration of criminal justice into disrepute, incarceration must be the primary sentencing tool to reflect community repudiation of this conduct and to discourage others from engaging in such conduct.
25After carefully weighing the seriousness of the offence, the aggravating and mitigating factors present, the personal circumstances of Mr. Munir and the case law submitted by counsel I am of the view that the appropriate sentence on a guilty plea should be in the 6-9 month range with a lengthy period of probation emphasizing both counselling and community service. Given Mr. Munir's early guilty plea, his cooperation with the police and the Law Society of Upper Canada, his remorse and rehabilitative efforts, I am prepared to impose a sentence at the lower end of the range. Mr. Munir is therefore sentenced to a period of six months followed by 2 years of probation.
Probation Terms
26The terms of probation are as follows:
Report to a probation officer within 72 hours of your release from custody and thereafter as directed by your probation officer.
Remain in Ontario unless you have prior written permission of your probation officer.
Do not contact or communicate directly or indirectly E.M. or M.R..
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer for substance and alcohol abuse.
Sign any release of information forms or provide proof to your probation officer that you have attended at and successfully completed any programs directed by your probation officer.
Perform 175 hours of community service work to be completed within 18 months of the commencement of this probation order and provide written proof to your probation officer that you have completed the community service work.
Released: February 13, 2015
Justice T. Lipson